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EFF's Deeplinks Blog: Noteworthy news from around the internetenEFF Testifies on Exemptions to DMCA Section 1201https://www.eff.org/deeplinks/2015/05/eff-testifies-exemptions-dmca-section-1201
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>EFF will go to bat for users' rights at this month's hearings on exemptions to Section 1201 of the Digital Millennium Copyright Act (DMCA). Section 1201's overreaching restriction on circumventing "access control" or "digital rights management" (DRM) technologies comes in direct conflict with lawful activities like conducting security research, repairing cars, and resuscitating old video games. For that reason, Congress included a provision allowing the public to petition the Copyright Office and Librarian of Congress for exemptions to the 1201 clause. It is a long, complex process that happens every three years with no guarantee that previous exemptions will stand, so EFF is back on the ground to advocate for several important issues.</p>
<p>In past years, EFF successfully petitioned for the right to jailbreak your phone and use DVD video for fair use remixes. In the 2015 petitions, we are working to uphold these uses and more. Here is what we are focusing on:</p>
<ul><li>Conducting security and safety research and performing repairs and customization on vehicles, where access to onboard computers is typically restricted</li>
<li>Creating fair use remixes of videos from locked sources, including DVDs and Blu-ray discs, as well as from online streaming sites</li>
<li>Jailbreaking phones and tablets to run operating systems and applications not specifically authorized by the manufacturer</li>
<li>Modifying older video games that require a centralized authentication or matchmaking server, after that server has been taken offline</li>
</ul><p>Public attention and participation are crucial in the online freedom movement. Laws like the DMCA and international trade agreements like the TPP shouldn't hinder our right to access, repair, remix, and tinker with technology. You can see EFF's legal team in action at the public hearings in Los Angeles and Washington, D.C. We advise attendees to dress in business attire and to observe protocol for government hearings. The full proposed agenda of 1201 rulemaking hearings is <a href="http://copyright.gov/1201">here</a> and you can find the listing of EFF testimonies below:</p>
<p>What: <strong>Proposed Class 22: Vehicle software – security and safety research</strong><br />
When: Tuesday, May 19, 2015 at 10:45 AM<br />
Where: UCLA School of Law, Room 1314, 385 Charles E. Young Drive East, Los Angeles, CA 90095 USA<br />
Who: Kit Walsh, EFF Staff Attorney</p>
<p>What: <strong>Proposed Class 21: vehicle software – diagnosis, repair, or modification</strong><br />
When: Tuesday, May 19, 2015 at 2 PM<br />
Where: UCLA School of Law, Room 1314, 385 Charles E. Young Drive East, Los Angeles, CA 90095 USA<br />
Who: Kit Walsh, EFF Staff Attorney</p>
<p>What: <strong>Proposed Class 23: Abandoned software – video games requiring server communication</strong><br />
When: Wednesday, May 20, 2015 at 1:45 PM<br />
Where: UCLA School of Law, Room 1314, 385 Charles E. Young Drive East, Los Angeles, CA 90095 USA<br />
Who: Mitch Stoltz, EFF Staff Attorney</p>
<p>What: <strong>Proposed Classes 16-18: Jailbreaking –wireless telephone handsets, all-purpose mobile computing devices, and dedicated e-book readers</strong><br />
When: Thursday, May 21, 2015 at 10:15 AM<br />
Where: UCLA School of Law, Room 1314, 385 Charles E. Young Drive East, Los Angeles, CA 90095 USA<br />
Who: Mitch Stoltz, EFF Staff Attorney</p>
<p>What: <strong>Proposed Class 7: Audiovisual works – derivative uses – noncommercial remix videos</strong><br />
When: Thursday, May 28, 2015 at 1:45 PM<br />
Where: Mumford Room of the James Madison Building of the Library of Congress, 101 Independence Ave. SE., Washington, D.C. 20540 USA<br />
Who: Corynne McSherry, EFF Legal Director</p>
</div></div></div><div class="field field-name-field-issue field-type-taxonomy-term-reference field-label-above"><div class="field-label">Related Issues:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/issues/dmca">DMCA</a></div><div class="field-item odd"><a href="/issues/drm">DRM</a></div><div class="field-item even"><a href="/issues/video-games">Video Games</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/home?status=EFF+Testifies+on+Exemptions+to+DMCA+Section+1201+https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2015%2F05%2Feff-testifies-exemptions-dmca-section-1201" target="_blank"><img src="/sites/all/themes/frontier/images/share/twitter16.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?u=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2015%2F05%2Feff-testifies-exemptions-dmca-section-1201&t=EFF+Testifies+on+Exemptions+to+DMCA+Section+1201" target="_blank"><img src="/sites/all/themes/frontier/images/share/facebook.gif" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2015%2F05%2Feff-testifies-exemptions-dmca-section-1201" onclick="javascript:window.open(this.href, '', 'menubar=no,toolbar=no,resizable=yes,scrollbars=yes,height=600,width=600');return false;"><img src="/sites/all/themes/frontier/images/share/gplus-16.png" alt="Share on Google+"/></a> <a href="http://sharetodiaspora.github.com/?title=EFF Testifies on Exemptions to DMCA Section 1201&url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2015%2F05%2Feff-testifies-exemptions-dmca-section-1201" target="_blank"><img src="/sites/all/themes/frontier/images/share/diaspora-16.png" alt="Share on Diaspora" /></a>&nbsp;&nbsp;||&nbsp;&nbsp;<a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Thu, 14 May 2015 20:40:23 +0000Aaron Jue85874 at https://www.eff.orgVideogame Publishers: No Preserving Abandoned Games, Even for Museums and Archives, Because All "Hacking" is Illegalhttps://www.eff.org/deeplinks/2015/04/videogame-publishers-no-preserving-abandoned-games-even-museums-and-archives
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>The Entertainment Software Association doesn’t want anyone to restore the functionality of older videogames that are no longer supported by their publisher, because, says ESA, this is “hacking,” and all hacking is “associated with piracy.”</p>
<p>EFF, along with law student Kendra Albert, is <a href="https://www.eff.org/cases/2015-dmca-rulemaking">asking the Copyright Office</a> to give some legal protection to game enthusiasts, museums, and academics who preserve older video games and keep them playable. We’re asking for an exemption to the <a href="https://www.eff.org/issues/dmca">Digital Millennium Copyright Act’s anti-circumvention provisions</a> (Section 1201) for those who modify games to keep them working after the servers they need are shut down. Many player communities, along with museums, archives, and researchers, want to keep the games they own playable after publishers shut down the servers the games depend on. Section 1201 creates legal difficulty for these communities, which is why we’ve asked the Copyright Office to give them an exemption.</p>
<p>Section 1201 is often used by the entertainment industries not to prevent copyright infringement but to control markets and lock out competition. So it’s not surprising that ESA (the trade association for the largest game producers), along with MPAA and RIAA, have written to the Copyright Office to oppose this exemption. They say that modifying games to connect to a new server (or to avoid contacting a server at all) after publisher support ends—letting people continue to play the games they paid for—will destroy the video game industry. They say it would “undermine the fundamental copyright principles on which our copyright laws are based.”</p>
<p>ESA also says that exceptions to Section 1201’s blanket ban will send a message that “hacking—an activity closely associated with piracy in the minds of the marketplace—is lawful.” Imagine the havoc that could result if people believed that “hacking” was ever legal! Of course, “hacking” is legal in most circumstances. ESA, the spokespeople for a group of <i>software companies</i>, knows this full well. Most of the programmers that create games for Sony, Microsoft, EA, Nintendo, and other ESA members undoubtedly learned their craft by tinkering with existing software. If “hacking,” broadly defined, were actually illegal, there likely would have been no video game industry.</p>
<p>Behind this hyperbole, ESA (along with MPAA and RIAA) seem to be opposing anyone who bypasses game DRM for any reason, no matter how limited or important.</p>
<p>Games abandoned by their producers are one area where Section 1201 is seriously interfering with important, lawful activities—like continuing to play the games you already own. It’s also a serious problem for archives like the <a href="https://archive.org/">Internet Archive</a>, museums like <a href="https://themade.org/">Oakland, California’s Museum of Art and Digital Entertainment</a>, and researchers who study video games as a cultural and historical medium. Thanks to server shutdowns, and legal uncertainty created by Section 1201, their objects of study and preservation may be reduced to the digital equivalent of crumbling papyrus in as little as a year. That’s why an exemption from the Copyright Office is needed.</p>
</div></div></div><div class="field field-name-field-issue field-type-taxonomy-term-reference field-label-above"><div class="field-label">Related Issues:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/issues/intellectual-property">Fair Use and Intellectual Property: Defending the Balance</a></div><div class="field-item odd"><a href="/issues/dmca">DMCA</a></div><div class="field-item even"><a href="/issues/dmca-rulemaking">DMCA Rulemaking</a></div><div class="field-item odd"><a href="/issues/drm">DRM</a></div><div class="field-item even"><a href="/issues/video-games">Video Games</a></div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/cases/2015-dmca-rulemaking">2015 DMCA Rulemaking</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/home?status=Videogame+Publishers%3A+No+Preserving+Abandoned+Games%2C+Even+for+Museums+and+Archives%2C+Because+All+%22Hacking%22+is+Illegal+https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2015%2F04%2Fvideogame-publishers-no-preserving-abandoned-games-even-museums-and-archives" target="_blank"><img src="/sites/all/themes/frontier/images/share/twitter16.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?u=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2015%2F04%2Fvideogame-publishers-no-preserving-abandoned-games-even-museums-and-archives&t=Videogame+Publishers%3A+No+Preserving+Abandoned+Games%2C+Even+for+Museums+and+Archives%2C+Because+All+%22Hacking%22+is+Illegal" target="_blank"><img src="/sites/all/themes/frontier/images/share/facebook.gif" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2015%2F04%2Fvideogame-publishers-no-preserving-abandoned-games-even-museums-and-archives" onclick="javascript:window.open(this.href, '', 'menubar=no,toolbar=no,resizable=yes,scrollbars=yes,height=600,width=600');return false;"><img src="/sites/all/themes/frontier/images/share/gplus-16.png" alt="Share on Google+"/></a> <a href="http://sharetodiaspora.github.com/?title=Videogame Publishers%3A No Preserving Abandoned Games%2C Even for Museums and Archives%2C Because All %22Hacking%22 is Illegal&url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2015%2F04%2Fvideogame-publishers-no-preserving-abandoned-games-even-museums-and-archives" target="_blank"><img src="/sites/all/themes/frontier/images/share/diaspora-16.png" alt="Share on Diaspora" /></a>&nbsp;&nbsp;||&nbsp;&nbsp;<a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Wed, 08 Apr 2015 16:11:26 +0000Mitch Stoltz85390 at https://www.eff.orgAn Exemption to the DMCA Would Let Game Fans Keep Abandoned Games Runninghttps://www.eff.org/let-game-fans-keep-abandoned-games-running
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>When you buy a video game, you expect to be able to play it for as long as you want. You expect be able to play it with your kids many years from now if you want (well, maybe not Grand Theft Auto). And you would hope that museums and media historians could preserve the games that were so important to your childhood. But unfortunately, the Digital Millennium Copyright Act’s <a title=" DMCA Rulemaking" href="https://www.eff.org/issues/dmca-rulemaking">anti-circumvention provisions</a> (17 U.S.C. § 1201, or Section 1201) creates legal risks for players who want to keep playing after game servers shut down, and curators who want to preserve games for posterity. That’s why I’m spearheading an effort to win legal protection for game enthusiasts and preservationists who want to keep abandoned games alive by running multiplayer servers or eliminating authentication mechanisms. On Friday, EFF and I filed <a title="EFF Comments on a DMCA Exemption for Abandoned Games" href="https://www.eff.org/document/eff-comments-dmca-exemption-abandoned-games">comments</a> with the Copyright Office asking for a new exemption to Section 1201.</p>
<p>Each year, more and more video games have their servers shut down. For some of those games, such as Mario Kart Wii, players set up servers to keep communities alive. Enthusiasts regard this as a labor of love—a tribute to a game they cared about or had a special connection to, a way to keep a great game’s lights on for just a little longer. But they face legal risks, as changing a game so it doesn’t need to connect to a server that no longer exists could violate Section 1201’s ban on circumventing “technical protection measures.”</p>
<p>Game developers and distributors don’t run servers forever, and often shut them off when player numbers dwindle. Having player communities step in to preserve their games is a win for everyone. However, Section 1201 creates chilling effects that keep this from happening. And for games without dedicated programmers who are willing to take legal risks, communities disperse, moving on to new games or just disappearing entirely.</p>
<p>Section 1201 also has chilling effects on people who want to preserve or archive games, both those who are affiliated with formal institutions and those who are just enthusiasts. As digital archiving expert Henry Lowood explains, “Repositories and researchers [are forced] into the uncomfortable situation of considering unauthorized circumvention of copyright law in order to preserve or provide access to game and virtual world environments, data, and software.” Archiving and preserving playable copies is essential to future researchers, especially ones who wish to study the multiplayer components and the design of modern games. In the words of game community sociologist T.L. Taylor, “playing together is not a trivial side aspect to digital gaming and this means that scholars need to be able to emulate conditions of original use as much as possible.”</p>
<p>The exemption that we proposed covers games where single-player or multiplayer play is no longer possible, either because the game’s developers have shut down servers or abandoned them. (It does not cover massively multiplayer online games with persistent worlds.) Experts from the Internet Archive, Stanford University, MIT, and the Museum of Art and Digital Entertainment filed statements in support of the exemption.</p>
<p>We think Section 1201 is an unsound, overbroad statute that chills huge amounts of legal reverse-engineering. And it allows companies to maintain a chokehold on their works even after they give up on the communities that love them. It shouldn’t exist. But since it does, we ask the Library of Congress to grant an exemption to help enthusiasts of all types continue to play and preserve the games they lawfully own.</p>
<p><i>Kendra Albert is a law student and former EFF intern.</i></p>
</div></div></div><div class="field field-name-field-issue field-type-taxonomy-term-reference field-label-above"><div class="field-label">Related Issues:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/issues/intellectual-property">Fair Use and Intellectual Property: Defending the Balance</a></div><div class="field-item odd"><a href="/issues/dmca-rulemaking">DMCA Rulemaking</a></div><div class="field-item even"><a href="/issues/innovation">Innovation</a></div><div class="field-item odd"><a href="/issues/drm">DRM</a></div><div class="field-item even"><a href="/issues/video-games">Video Games</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/home?status=An+Exemption+to+the+DMCA+Would+Let+Game+Fans+Keep+Abandoned+Games+Running+https%3A%2F%2Fwww.eff.org%2Flet-game-fans-keep-abandoned-games-running" target="_blank"><img src="/sites/all/themes/frontier/images/share/twitter16.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?u=https%3A%2F%2Fwww.eff.org%2Flet-game-fans-keep-abandoned-games-running&t=An+Exemption+to+the+DMCA+Would+Let+Game+Fans+Keep+Abandoned+Games+Running" target="_blank"><img src="/sites/all/themes/frontier/images/share/facebook.gif" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A%2F%2Fwww.eff.org%2Flet-game-fans-keep-abandoned-games-running" onclick="javascript:window.open(this.href, '', 'menubar=no,toolbar=no,resizable=yes,scrollbars=yes,height=600,width=600');return false;"><img src="/sites/all/themes/frontier/images/share/gplus-16.png" alt="Share on Google+"/></a> <a href="http://sharetodiaspora.github.com/?title=An Exemption to the DMCA Would Let Game Fans Keep Abandoned Games Running&url=https%3A%2F%2Fwww.eff.org%2Flet-game-fans-keep-abandoned-games-running" target="_blank"><img src="/sites/all/themes/frontier/images/share/diaspora-16.png" alt="Share on Diaspora" /></a>&nbsp;&nbsp;||&nbsp;&nbsp;<a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Mon, 09 Feb 2015 23:04:32 +0000Kendra Albert84541 at https://www.eff.orgAnd The Games Play On: EFF Fights For Users' Rights to Play and Preserve Abandoned Video Gameshttps://www.eff.org/deeplinks/2014/11/and-games-play-eff-fights-users-rights-play-and-preserve-abandoned-video-games
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>When you buy a book, a record, or a movie, you can expect to be able to enjoy it, on your own terms, for as long as you want. But the same cannot always be said about video games. Over the past several years, video game publishers have increasingly required connection with one of their own servers in order to "unlock" core functionality for gameplay. Publishers often take those servers offline once they stop being economical to run, leaving a typical gamer unable to play her lawfully purchased games. And this affects not just video game players, but archivists and researchers who want to preserve and study the history of games as cultural artifacts.</p>
<p>EFF has filed a <a href="https://www.eff.org/document/eff-videogames-exemption-request">petition</a> with the Copyright Office and the Librarian of Congress this week seeking an exemption to the <a href="https://www.eff.org/issues/dmca">Digital Millennium Copyright Act</a>'s anti-circumvention provision, in order to allow video gamers to modify their software to disable authentication checks or to connect to third party servers after official support for those games has ended.</p>
<p>As with <a href="https://www.eff.org/cases/2015-dmca-rulemaking">the other petitions we've filed this week</a>, the issue is not one of copyright infringement. Making modifications to lawfully acquired software in order to access its functionality is an established fair use. The problem, instead, is that the DMCA contains a broad anti-circumvention provision that doesn't distinguish between infringing and non-infringing uses. Except for the exemptions created in a <a href="https://www.eff.org/issues/dmca-rulemaking">time-consuming and laborious process</a> every three years, the DMCA creates a blanket ban on breaking DRM to access copyrighted works, regardless of the ultimate intent.</p>
<p>As you might expect, such a sweeping restriction has many <a href="https://www.eff.org/pages/unintended-consequences">unintended consequences</a>, chilling speech and hindering competition in a ham-fisted effort to limit infringement. The law is sorely in need of an adjustment—one promising reform proposal is the <a href="https://act.eff.org/action/unchain-your-phone-with-the-unlocking-technology-act">Unlocking Technology Act</a>, introduced last year by Rep. Zoe Lofgren and a bipartisan coalition of legislators.</p>
<p>This petition marks the first time we have requested a specific exemption for abandoned games, reflecting the fact that the problem has become more and more mainstream. Even massively popular franchises like <a href="http://arstechnica.com/gaming/2012/03/ea-announces-server-shutdown-for-14-games-citing-dwindling-player-numbers/">Need For Speed</a> and <a href="http://arstechnica.com/gaming/2014/02/the-day-the-mario-kart-died-nintendos-killswitch-and-the-future-of-online-consoles/">Mario Kart</a> have had major functionality lopped off by their publishers as their sales waned. And the issue will only become more pronounced as more game sales shift to digital marketplaces, where authentication checks are even more common.</p>
<p>As archivists can attest, there are a number of ways in which digital media in general are more fragile than physical media. The law should not be exacerbating that problem. But with video games in particular, legal restrictions on preserving and maintaining functionality threatens to wipe out communities of players that participate in competitive or collaborative play.</p>
<p>In an ideal world, publishers wouldn't encumber their software with restrictive DRM, mandatory authentication schemes, or proprietary multiplayer protocols. In the meantime though, gamers should be allowed to continue playing the games they've legally purchased without a cloud of legal uncertainty hovering over them.</p>
</div></div></div><div class="field field-name-field-issue field-type-taxonomy-term-reference field-label-above"><div class="field-label">Related Issues:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/issues/intellectual-property">Fair Use and Intellectual Property: Defending the Balance</a></div><div class="field-item odd"><a href="/issues/dmca">DMCA</a></div><div class="field-item even"><a href="/issues/dmca-rulemaking">DMCA Rulemaking</a></div><div class="field-item odd"><a href="/issues/video-games">Video Games</a></div></div></div><div class="field field-name-field-related-cases field-type-node-reference field-label-above"><div class="field-label">Related Cases:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/cases/2015-dmca-rulemaking">2015 DMCA Rulemaking</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/home?status=And+The+Games+Play+On%3A+EFF+Fights+For+Users%27+Rights+to+Play+and+Preserve+Abandoned+Video+Games+https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2014%2F11%2Fand-games-play-eff-fights-users-rights-play-and-preserve-abandoned-video-games" target="_blank"><img src="/sites/all/themes/frontier/images/share/twitter16.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?u=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2014%2F11%2Fand-games-play-eff-fights-users-rights-play-and-preserve-abandoned-video-games&t=And+The+Games+Play+On%3A+EFF+Fights+For+Users%27+Rights+to+Play+and+Preserve+Abandoned+Video+Games" target="_blank"><img src="/sites/all/themes/frontier/images/share/facebook.gif" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2014%2F11%2Fand-games-play-eff-fights-users-rights-play-and-preserve-abandoned-video-games" onclick="javascript:window.open(this.href, '', 'menubar=no,toolbar=no,resizable=yes,scrollbars=yes,height=600,width=600');return false;"><img src="/sites/all/themes/frontier/images/share/gplus-16.png" alt="Share on Google+"/></a> <a href="http://sharetodiaspora.github.com/?title=And The Games Play On%3A EFF Fights For Users%27 Rights to Play and Preserve Abandoned Video Games&url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2014%2F11%2Fand-games-play-eff-fights-users-rights-play-and-preserve-abandoned-video-games" target="_blank"><img src="/sites/all/themes/frontier/images/share/diaspora-16.png" alt="Share on Diaspora" /></a>&nbsp;&nbsp;||&nbsp;&nbsp;<a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Fri, 07 Nov 2014 23:24:22 +0000Parker Higgins83072 at https://www.eff.orgGeneral Noriega Attacks Activision: How The ‘Right of Publicity’ Led A Dictator to Censor Call of Dutyhttps://www.eff.org/deeplinks/2014/07/general-noriega-attacks-activision-how-right-publicity-led-dictator-censor-call
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>In Call of Duty: Black Ops II, players engage in a variety of missions. In some, they encounter nonfiction characters, including a character based on <a href="http://en.wikipedia.org/wiki/Manuel_Noriega">General Manuel Noriega</a>, the former military dictator of Panama. As with movies or books, a creator of a video game might include real-world people as part of its historical narrative, to heighten realism, or for purposes of political satire or social commentary. The First Amendment should provide robust protection for this kind of creative expression. But some <a href="https://www.eff.org/deeplinks/2013/07/ninth-circuit-says-celebrities-are-more-important-free-speech">terrible court decisions</a> regarding the so-called ‘right of publicity’ have opened the door to censorship by persons depicted in creative works.</p>
<p><img class="align-right" src="/files/2014/07/17/manuel_noriega_time_and_fate_boii.png" alt="" height="213" width="379" /></p>
<p>A new lawsuit illustrates just how crazy things have become. Yesterday, General Noriega, who is currently in prison in Panama, sued Activision for his depiction in Call of Duty. His <a href="https://www.eff.org/files/2014/07/17/noriega_v_activision_complaint.pdf">lawsuit</a> claims that the game misappropriates his likeness for financial gain, a California state law claim also known as the “right of publicity.” This is not a defamation suit. Rather, Noriega is claiming that Activision included him “to heighten realism in its video game” and this means they should pay up. As one commentator <a href="https://www.courthousenews.com/2014/07/15/69523.htm">wrote</a>, this is “a lawsuit that beggars belief.”</p>
<p>But the true source of madness here is not General Noriega and his lawyers. Rather, it is the Ninth Circuit’s <a href="http://scholar.google.com/scholar_case?case=1334389017985947449">recent ruling</a> in <i>Keller v. Electronic Arts</i>. In that case, the court found that EA’s NCAA Football game infringed a former college player’s right to publicity. The court dismissed any free speech concerns. The majority wrote that the use of Keller’s likeness did “not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.” In other words, because EA’s game was realistic, it was not protected expression.</p>
<p>Dissenting in the <i>Keller</i> case, Judge Sidney Thomas wrote:</p>
<blockquote><p>The logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.</p></blockquote>
<p>Noriega’s lawsuit against Activision shows that Judge Thomas was right. The fundamental premise of Noriega’s case is that his inclusion in the game was for realism and thus was not protected. This is a crazy claim. Works—be they books, movies, or games—should not lose First Amendment protection just because they strive for realism. But the Ninth Circuit’s <i>Keller </i>ruling (and a <a href="https://www.eff.org/deeplinks/2013/05/publicity-rights-arent-property-rights-court-wrong-hart-v-ea">similar decision</a> from the Third Circuit) encourages public figures to advance exactly this argument.</p>
<p>The Noriega case raises another fundamental issue. Why should a notorious dictator, or any governmental official, even have a right to publicity? Surely we should be able to speak freely about public officials, both to criticize them and to include them in historical works. The First Amendment must provide some limitation on misappropriation and publicity claims. Otherwise the torts could be used by public officials to force the deletion of both their misdeeds and achievements from books, movies, video games and other creative works.</p>
<p>Publicity lawsuits by public officials have thus far been rare. Two of the more noteworthy ones involved political figures who were also entertainers. In 2004, California Governor Arnold Schwarzenegger <a href="http://www.nytimes.com/2004/05/18/national/18arnold.html">sued</a> the creators and marketers of a “Governator” bobblehead. The case was settled before there was any court decision. And in 1968, Pat Paulsen, a well-known comedian who had declared himself a candidate for the US presidency, sued a company for selling a mock campaign poster bearing Paulsen’s picture. A New York state court <a href="http://www.leagle.com/decision/196850359Misc2d444_1380.xml/PAULSEN%20v.%20PERSONALITY%20POSTERS">rejected</a> Paulsen’s request to stop distribution of the poster, explaining that by becoming a political candidate his image as a candidate, even a satirical one, became “clearly newsworthy and of public interest.”</p>
<p>It may be that Noriega’s case will fail. The <i>Paulsen</i> court’s reasoning will hopefully be applied there as well, should the case ever get before a judge. But courts dealing with right of publicity claims have tended to take a <a href="http://tushnet.blogspot.com/2013/08/keller-v-ea-visual-elements-mean-game.html">very ad-hoc, result-driven</a> approach that discriminates against video games and favors more traditional media (taken literally, the <i>Keller </i>decision would prohibit realistic biopics). We suspect that the courts may see a dictator litigating from prison as even less sympathetic than the video game industry. But even if Noriega loses, the mere threat of litigation like this can chill creative expression across media. Courts dealing with right of publicity cases need to respect free speech.</p>
</div></div></div><div class="field field-name-field-files field-type-file field-label-above"><div class="field-label">Files:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://www.eff.org/files/2014/07/17/noriega_v_activision_complaint.pdf" type="application/pdf; length=19890324">noriega_v_activision_complaint.pdf</a></span></div></div></div><div class="field field-name-field-issue field-type-taxonomy-term-reference field-label-above"><div class="field-label">Related Issues:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/issues/intellectual-property">Fair Use and Intellectual Property: Defending the Balance</a></div><div class="field-item odd"><a href="/issues/free-speech">Free Speech</a></div><div class="field-item even"><a href="/issues/video-games">Video Games</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/home?status=General+Noriega+Attacks+Activision%3A+How+The+%E2%80%98Right+of+Publicity%E2%80%99+Led+A+Dictator+to+Censor+Call+of+Duty+https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2014%2F07%2Fgeneral-noriega-attacks-activision-how-right-publicity-led-dictator-censor-call" target="_blank"><img src="/sites/all/themes/frontier/images/share/twitter16.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?u=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2014%2F07%2Fgeneral-noriega-attacks-activision-how-right-publicity-led-dictator-censor-call&t=General+Noriega+Attacks+Activision%3A+How+The+%E2%80%98Right+of+Publicity%E2%80%99+Led+A+Dictator+to+Censor+Call+of+Duty" target="_blank"><img src="/sites/all/themes/frontier/images/share/facebook.gif" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2014%2F07%2Fgeneral-noriega-attacks-activision-how-right-publicity-led-dictator-censor-call" onclick="javascript:window.open(this.href, '', 'menubar=no,toolbar=no,resizable=yes,scrollbars=yes,height=600,width=600');return false;"><img src="/sites/all/themes/frontier/images/share/gplus-16.png" alt="Share on Google+"/></a> <a href="http://sharetodiaspora.github.com/?title=General Noriega Attacks Activision%3A How The %E2%80%98Right of Publicity%E2%80%99 Led A Dictator to Censor Call of Duty&url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2014%2F07%2Fgeneral-noriega-attacks-activision-how-right-publicity-led-dictator-censor-call" target="_blank"><img src="/sites/all/themes/frontier/images/share/diaspora-16.png" alt="Share on Diaspora" /></a>&nbsp;&nbsp;||&nbsp;&nbsp;<a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Thu, 17 Jul 2014 20:06:00 +0000Daniel Nazer and David Greene81462 at https://www.eff.orgMicrosoft Reverses (Another) Anti-User Xbox One Policyhttps://www.eff.org/deeplinks/2013/08/microsoft-reverses-another-anti-user-xbox-one-policy
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>A Microsoft executive has confirmed that, contrary to earlier reports from the company, the upcoming Xbox One console <a href="http://www.ign.com/articles/2013/08/12/xbox-one-no-longer-requires-kinect-to-function">will not require the Kinect sensor to be activated</a> at all times after all. This change comes after a widespread backlash from gamers concerned about the privacy implications of an always-on camera pointed from the television back at the couch. </p>
<p>Microsoft's original announcement of the Kinect requirement came at an awkward time, as its privacy practices have been receiving a lot of attention over the past few months. The company was in the midst of <a href="http://allthingsd.com/20130712/microsoft-seriously-your-privacy-is-our-priority-stop-laughing/">an advertising campaign</a> that used the tagline "Your privacy is our priority" when <a href="http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data">the <i>Guardian</i> published information</a> connecting Microsoft and its product Skype with the NSA's PRISM program. Just days later, <a href="http://www.bloomberg.com/news/2013-06-14/u-s-agencies-said-to-swap-data-with-thousands-of-firms.html"><i>Bloomberg</i> published a report</a> that the company provides U.S. intelligence agencies like the NSA with advance information about its products' security vulnerabilities, which could in theory be used to get backdoor access to a person's computer.</p>
<p>Against that backdrop, users expressed concerns that an always-on Kinect camera could be co-opted for surveillance. Some referred to the product as "<a href="http://www.policymic.com/articles/47825/xbox-1-e3-announcement-why-it-was-so-absolutely-scary">the future of PRISM</a>." Two Congressmembers even introduced <a href="http://www.ibtimes.com/xbox-one-congressmen-introduce-we-are-watching-you-act-bill-targets-kinect-snooping-1311983">a bill called the "We Are Watching You Act"</a> aimed at Kinect and similar devices.</p>
<p>Microsoft had previously responded to those concerns in June with <a href="http://news.xbox.com/2013/06/privacy">more information about the privacy protections built in to Kinect</a>, but this week's interview makes it clear they have made additional changes, such that the device could be de-activated all together.</p>
<p>Some of the privacy issues with Kinect are real and substantial, so it is encouraging to see Microsoft respond to feedback. Despite the timing of the NSA revelations, the company has endeavored to compete publicly on its privacy practices. It also joined EFF and other tech companies in <a href="https://www.eff.org/deeplinks/2013/07/who-has-your-back-companies-demand-transparency-around-government-data-requests">calling on the U.S. government</a> to lift unnecessary restrictions on what sorts of government data requests they can publicly report.</p>
<p>If we hope to see <a href="http://www.theatlantic.com/technology/archive/2013/08/the-nsa-is-commandeering-the-internet/278572/">more companies push back on NSA surveillance of their users</a>, we must first recognize where that's happening. Removing the requirement for an always-on Kinect may be a minor change, but a step in the right direction.</p>
<p>This change isn't the first time Microsoft has responded to Xbox One criticisms with a real policy adjustment. Earlier this summer, Microsoft made a <a href="http://news.xbox.com/2013/06/update">separate announcement</a> in response to concerns about its plans for an <a href="http://kotaku.com/the-xbox-one-just-had-a-very-bad-day-511766497">expansive built-in DRM scheme</a> that would have required a constant Internet connection—even to play offline—and restricted the way users could sell and trade games. After coming under heavy criticism from <a href="http://arstechnica.com/gaming/2013/06/sony-playstation-4-wont-restrict-game-discs/">its competitor Sony</a> and the gaming community at large, it <a href="http://news.xbox.com/2013/06/update">lifted many of those restrictions completely</a>.</p>
</div></div></div><div class="field field-name-field-issue field-type-taxonomy-term-reference field-label-above"><div class="field-label">Related Issues:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/issues/drm">DRM</a></div><div class="field-item odd"><a href="/issues/video-games">Video Games</a></div><div class="field-item even"><a href="/issues/privacy">Privacy</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/home?status=Microsoft+Reverses+%28Another%29+Anti-User+Xbox+One+Policy+https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F08%2Fmicrosoft-reverses-another-anti-user-xbox-one-policy" target="_blank"><img src="/sites/all/themes/frontier/images/share/twitter16.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?u=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F08%2Fmicrosoft-reverses-another-anti-user-xbox-one-policy&t=Microsoft+Reverses+%28Another%29+Anti-User+Xbox+One+Policy" target="_blank"><img src="/sites/all/themes/frontier/images/share/facebook.gif" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F08%2Fmicrosoft-reverses-another-anti-user-xbox-one-policy" onclick="javascript:window.open(this.href, '', 'menubar=no,toolbar=no,resizable=yes,scrollbars=yes,height=600,width=600');return false;"><img src="/sites/all/themes/frontier/images/share/gplus-16.png" alt="Share on Google+"/></a> <a href="http://sharetodiaspora.github.com/?title=Microsoft Reverses %28Another%29 Anti-User Xbox One Policy&url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F08%2Fmicrosoft-reverses-another-anti-user-xbox-one-policy" target="_blank"><img src="/sites/all/themes/frontier/images/share/diaspora-16.png" alt="Share on Diaspora" /></a>&nbsp;&nbsp;||&nbsp;&nbsp;<a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Tue, 13 Aug 2013 22:49:24 +0000Parker Higgins75344 at https://www.eff.orgNinth Circuit Rules That Celebrity "Rights" Trump Free Speechhttps://www.eff.org/deeplinks/2013/07/ninth-circuit-says-celebrities-are-more-important-free-speech
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Should a minor celebrity's right to wring every drop he can from his fame trump the right to create a realistic work? The Ninth Circuit Court of Appeals put its thumb on the scales today, issuing a terrible <a href="https://www.eff.org/files/keller_v._ea_-_ninth_circuit.pdf">decision</a> holding that a celebrity’s right of publicity is more important than any First Amendment right to depict real people in a video game. This ruling follows closely on the heels of a <a href="https://www.eff.org/deeplinks/2013/05/publicity-rights-arent-property-rights-court-wrong-hart-v-ea">similar decision</a> from the Third Circuit and threatens a wide range of speech—such as biographies and documentaries—which seeks to realistically depict famous people.</p>
<p>The plaintiff, Sam Keller, brought the case to challenge Electronic Art (EA)’s use of his likeness in its videogame NCAA Football. This game includes realistic digital avatars of thousands of college players. The game never used Keller’s name, but it included an avatar with his jersey number, basic biographical information, and statistics. Keller sued EA claiming that the game infringed his right of publicity—an offshoot of privacy law that gives a person the right to limit the public use of her name, likeness and/or identity for commercial purposes.</p>
<p>EA argued that it has a First Amendment right to use Keller’s likeness in an expressive work such as a video game. The Ninth Circuit recognized that EA had a First Amendment interest in the video game. But then the opinion goes sideways. In balancing Keller’s right to control the use of his identity against EA’s right to free speech, the Ninth Circuit applied the deeply flawed ‘transformative use’ test. This test (which has been <a href="http://www.teachingcopyright.org/handout/fair-use-faq">borrowed from copyright law</a> without, unfortunately, borrowing the fair use doctrine's crucial role of ensuring that copyright law promotes and does not impede new creativity) asks whether the use of someone’s identity is transformative, i.e., creates something new with a different purpose or character. Two judges on the panel found that EA’s depiction of Keller was not transformative. They reasoned that the “use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.”</p>
<p>Taken literally, this reasoning could impact an extraordinary range of protected speech. As Judge Sidney Thomas explained in dissent:</p>
<blockquote><p>The logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.</p></blockquote>
<p>Indeed, we can see the danger of the majority’s decision by applying its reasoning to both EA’s game and the recent biopic <i>The Social Network</i>.</p>
<p></p><center><img src="https://www.eff.org/files/images_insert/keller.jpg" alt="" title="“EA’s use does not qualify for First Amendment protection because it literally recreates Keller in the very setting in which he has achieved renown.&quot;" height="274" width="436" /></center>
<p></p><div class="caption caption-center"><div class="caption-inner">EA’s use does not qualify for First Amendment protection because it literally recreates Keller in the very setting in which he has achieved renown.</div></div>
<p></p><center><img src="https://www.eff.org/files/images_insert/zuck.jpg" alt="" title="Paramount’s use does not qualify for First Amendment protection because it literally recreates Zuckerberg in the very setting in which he has achieved renown." height="214" width="432" /></center>
<p></p><div class="caption caption-center"><div class="caption-inner">Columbia Pictures’ use does not qualify for First Amendment protection because it literally recreates Zuckerberg in the very setting in which he has achieved renown.</div></div>
<p>The majority tried to distinguish other forms of speech—such as books and movies—by pointing to “EA’s primary emphasis on reproducing reality.” This is a terrible argument. Many books and movies strive for realism. Does that make them less worthy of First Amendment protection? Ultimately, the transformative use test makes no sense as a First Amendment standard. There is no reason to disfavor "realistic" speech. </p>
<p>Adding to the strangeness of today’s ruling, the same three-judge panel simultaneously issued an excellent free speech <a href="https://www.eff.org/files/brown_v._ea_-_ninth_circuit.pdf">decision</a> in <i>Brown v. Electronic Arts. </i>That case involved nearly identical facts—footballer Jim Brown challenged EA’s use of his likeness in the game Madden NFL—but the claim was brought under the Lanham Act (the federal statute relating to trademarks). In Lanham Act cases, the Ninth Circuit applies the <i>Rogers </i>test, which asks whether the use of a trademark (or likeness) in an expressive work has any artistic relevance. Since EA’s use of Brown’s likeness was relevant to its football game, it was protected by the First Amendment. Unlike the vague transformation test, the <i>Rogers </i>test is highly protective of free expression. It merely requires that the artistic relevance be above zero and thus limits the need for the court to engage in artistic weighing. It should also be applied in right of publicity cases.</p>
<p>Today’s twin rulings create a bizarro world where the First Amendment (properly) provides robust protection for the use of trademarks in expressive works but offers almost no protection in the face of the amorphous state-law right of publicity—a right that is rooted in privacy protections but, in its current incarnation, only makes sense as a method of, like trademark, reducing consumer confusion. What is worse, in recent years, the right of publicity has expanded to apply to just about anything that “evokes” a person’s identity, such as a phrase associated with a celebrity (like “<a href="http://www.hollywoodreporter.com/blogs/thr-esq/johnny-carson-estate-wins-injunction-63785">Here’s Johnny,</a>”) or even a robot <a href="https://bulk.resource.org/courts.gov/c/F2/971/971.F2d.1395.90-55840.html">dressed like a celebrity</a>. Left unchecked, publicity rights would give celebrities the right to censor a staggering range of expression. We hope that the Ninth Circuit (sitting en banc) or the Supreme Court steps in to restore robust protection for free speech.</p>
</div></div></div><div class="field field-name-field-files field-type-file field-label-above"><div class="field-label">Files:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://www.eff.org/files/keller_v._ea_-_ninth_circuit.pdf" type="application/pdf; length=214055">keller_v._ea_-_ninth_circuit.pdf</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://www.eff.org/files/brown_v._ea_-_ninth_circuit.pdf" type="application/pdf; length=136364">brown_v._ea_-_ninth_circuit.pdf</a></span></div></div></div><div class="field field-name-field-issue field-type-taxonomy-term-reference field-label-above"><div class="field-label">Related Issues:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/issues/intellectual-property">Fair Use and Intellectual Property: Defending the Balance</a></div><div class="field-item odd"><a href="/issues/free-speech">Free Speech</a></div><div class="field-item even"><a href="/issues/video-games">Video Games</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/home?status=Ninth+Circuit+Rules+That+Celebrity+%22Rights%22+Trump+Free+Speech+https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F07%2Fninth-circuit-says-celebrities-are-more-important-free-speech" target="_blank"><img src="/sites/all/themes/frontier/images/share/twitter16.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?u=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F07%2Fninth-circuit-says-celebrities-are-more-important-free-speech&t=Ninth+Circuit+Rules+That+Celebrity+%22Rights%22+Trump+Free+Speech" target="_blank"><img src="/sites/all/themes/frontier/images/share/facebook.gif" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F07%2Fninth-circuit-says-celebrities-are-more-important-free-speech" onclick="javascript:window.open(this.href, '', 'menubar=no,toolbar=no,resizable=yes,scrollbars=yes,height=600,width=600');return false;"><img src="/sites/all/themes/frontier/images/share/gplus-16.png" alt="Share on Google+"/></a> <a href="http://sharetodiaspora.github.com/?title=Ninth Circuit Rules That Celebrity %22Rights%22 Trump Free Speech&url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F07%2Fninth-circuit-says-celebrities-are-more-important-free-speech" target="_blank"><img src="/sites/all/themes/frontier/images/share/diaspora-16.png" alt="Share on Diaspora" /></a>&nbsp;&nbsp;||&nbsp;&nbsp;<a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Thu, 01 Aug 2013 06:48:47 +0000Daniel Nazer75227 at https://www.eff.orgCelebrity Rights Shouldn’t Trump Constitutional Rights: EFF Supports Challenge to Dangerous Publicity Rights Decisionhttps://www.eff.org/deeplinks/2013/06/celebrity-rights-shouldnt-trump-constitutional-rights-eff-supports-challenge
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>A federal appeals court struck a blow against free speech in a May 21 ruling against a video-game creator and EFF won’t let it stand unchallenged.</p>
<p>Working with a coalition of groups representing filmmakers, vidders, and fair-use advocates, EFF today filed a <a href="https://www.eff.org/files/hart_v._ea_amici_brief_in_support_of_petition_for_rehearing.pdf">friend-of-the-court</a> (in Latin, <em>amicus curiae</em>) brief with the Third Circuit Court of Appeals, urging the court to revisit its <a target="_blank" href="http://www.ca3.uscourts.gov/opinarch/113750p.pdf‎">ruling</a> in <i>Ryan Hart v. Electronic Arts</i>. If the court agrees, the full court (as opposed to just three judges) will have a chance to consider the case.</p>
<p>At the center of the case is EA’s video game <a href="https://www.easports.com/ncaa-football">NCAA Football</a>, which simulates college football by using realistic digital avatars of players. One of those avatars resembled Hart, a former Rutgers quarterback. Although he wasn’t named in the game, Hart sued EA, claiming it violated his right to publicity. The court agreed, but what’s really chilling is that it not only came to that conclusion based on a legal test that gives too much weight to commercial interests as opposed to free speech, it applied the test incorrectly. The result: a perilous precedent for all forms of media that depict real people—including unauthorized biopics (for example Oscar-winning <i>The Social Network</i>), documentaries, and even journalism that includes representations of real people.</p>
<p><a href="https://www.eff.org/deeplinks/2013/05/publicity-rights-arent-property-rights-court-wrong-hart-v-ea">In a recent blog post</a> EFF’s Intellectual Property Director Corynne McSherry enumerated all the follies of the court’s decision. On Saturday, the <i>New York Times</i> also published an <a href="https://www.nytimes.com/2013/06/02/sunday-review/between-the-first-amendment-and-right-of-publicity.html?_r=0">astute, must-read analysis</a> of the issues at play in the case.</p>
<p>Hart won the best of three (judges) match, but EFF thinks free speech will win out in a best of 14. While we would welcome a favorable ruling from the full court (also called <em>en banc</em>), this play is also the next step in bringing the issue to the biggest stadium of all—the Supreme Court of the United States.</p>
<p> </p>
<p> </p>
</div></div></div><div class="field field-name-field-files field-type-file field-label-above"><div class="field-label">Files:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://www.eff.org/files/hart_v._ea_amici_brief_in_support_of_petition_for_rehearing.pdf" type="application/pdf; length=75688">hart_v._ea_amici_brief_in_support_of_petition_for_rehearing.pdf</a></span></div></div></div><div class="field field-name-field-issue field-type-taxonomy-term-reference field-label-above"><div class="field-label">Related Issues:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/issues/free-speech">Free Speech</a></div><div class="field-item odd"><a href="/issues/video-games">Video Games</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/home?status=Celebrity+Rights+Shouldn%E2%80%99t+Trump+Constitutional+Rights%3A+EFF+Supports+Challenge+to+Dangerous+Publicity+Rights+Decision+https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F06%2Fcelebrity-rights-shouldnt-trump-constitutional-rights-eff-supports-challenge" target="_blank"><img src="/sites/all/themes/frontier/images/share/twitter16.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?u=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F06%2Fcelebrity-rights-shouldnt-trump-constitutional-rights-eff-supports-challenge&t=Celebrity+Rights+Shouldn%E2%80%99t+Trump+Constitutional+Rights%3A+EFF+Supports+Challenge+to+Dangerous+Publicity+Rights+Decision" target="_blank"><img src="/sites/all/themes/frontier/images/share/facebook.gif" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F06%2Fcelebrity-rights-shouldnt-trump-constitutional-rights-eff-supports-challenge" onclick="javascript:window.open(this.href, '', 'menubar=no,toolbar=no,resizable=yes,scrollbars=yes,height=600,width=600');return false;"><img src="/sites/all/themes/frontier/images/share/gplus-16.png" alt="Share on Google+"/></a> <a href="http://sharetodiaspora.github.com/?title=Celebrity Rights Shouldn%E2%80%99t Trump Constitutional Rights%3A EFF Supports Challenge to Dangerous Publicity Rights Decision&url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F06%2Fcelebrity-rights-shouldnt-trump-constitutional-rights-eff-supports-challenge" target="_blank"><img src="/sites/all/themes/frontier/images/share/diaspora-16.png" alt="Share on Diaspora" /></a>&nbsp;&nbsp;||&nbsp;&nbsp;<a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Tue, 04 Jun 2013 23:25:27 +0000Dave Maass74427 at https://www.eff.orgPublicity Rights Aren’t Property Rights: Appellate Court Gets It Very Wrong in Hart v. EAhttps://www.eff.org/deeplinks/2013/05/publicity-rights-arent-property-rights-court-wrong-hart-v-ea
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Bad facts make bad law: it’s legal cliché that is unfortunately based on reality. We saw as much yesterday, in the case of <em>Ryan Hart v. Electronic Arts.</em> Presented with a situation that just seemed unfair, the Third Circuit Court of Appeals <a href="https://www.eff.org/files/hart_v._ea_3rd_cir_decision_copy.pdf">proceeded to make a whole bunch of bad law </a>that puts dollars ahead of speech.</p>
<p>Here are the facts: Electronic Arts sells a videogame called <cite>NCAA Football</cite>. Part of the success of the game is based on its realism and detail—including its realistic digital avatars of college players. One of those players was Ryan Hart, who played for Rutgers University from 2002 to 2005. <cite>NCAA Football</cite> did not use Hart’s name, but the game included an avatar with Hart’s Rutgers team jersey number, biographical information, and statistics. Trouble is, no one asked Hart if he wanted to be part of the game. Nor did anyone pay him for it—they couldn’t, because college players aren’t allowed to accept money for any kind of commercial activity. When Ryan discovered the game, he sued EA based on a lesser-known but pernicious legal doctrine, the right of publicity.</p>
<p>The right of publicity a funny offshoot of privacy law that gives a (human) person the right to limit the public use of her name, likeness and/or identity, particularly for commercial purposes like an advertisement. The original idea was that using someone's face to sell soap or gum, for example, might be embarrassing for that person and that she should have the right to prevent it. While that might makes some sense in a narrow context, states have expanded the law well beyond its original boundaries. For example, the right was once understood to be limited to name and likeness, but now it can mean just about anything that “evokes” a person’s identity, such as a phrase associated with a celebrity (like “<a href="http://www.hollywoodreporter.com/blogs/thr-esq/johnny-carson-estate-wins-injunction-63785">Here’s Johnny,</a>”) or even a robot <a href="https://bulk.resource.org/courts.gov/c/F2/971/971.F2d.1395.90-55840.html">dressed like a celebrity</a>. And in some states, the right can now be invoked by your heirs long after you are dead and, presumably, in no position to be embarrassed by any sordid commercial associations. In other words, it’s become a money-making machine.</p>
<p>But there has traditionally been at least one limit on publicity claims: the First Amendment. In a nutshell, courts are supposed to balance a person’s right to control the use of her identity against others’ right to expressive speech – including videogames. Unfortunately, the Third Circuit just threw that balance way out of whack.</p>
<p><u>The good:</u> The court recognizes that videogames are protected expression under the First Amendment, and that free speech is important. Whew!</p>
<p><u>The bad</u>: The court embraced the wrong test for balancing a person's commercial interests against free speech. Many courts have sensibly borrowed from trademark law and found that, where the invocation of an identity is part of the expressive purpose, the court should not punish it unless it is in essence a disguised advertisement, e.g., the user is just trying to use a person's name to call attention to a product (like potato chips).</p>
<p>Here, the court went off in an entirely different direction, borrowing instead from copyright law to conclude that only uses that are “transformative” can be protected by the First Amendment. In copyright, whether a work is transformative, i.e., creates something new with a different purpose or character, is an important part of the fair use analysis. However, the court imported a decidely narrow approach to transformativeness: did not consider whether the game as a whole had transformative value, as one would in a copyright case, but focused solely only on how Hart's identity was used or transformed. The court reasoned that since the “digital Ryan Hart does what the actual Ryan Hart” did, i.e. play college football, there was no transformation and Hart’s economic interests trumped EA’s free speech interests. The court was also selective about what it chose to import from copyright, ignoring several other factors relevant to fair use, such as market harm and whether the underlying work is factual (if so, copyright protection is “thinner”).</p>
<p>As a group of video and filmmakers <a href="http://transformativeworks.org/sites/default/files/Hart%20v.%20EA%20-%20Amici%20Brief.pdf">pointed out</a>, the transformation test is a bad fit for publicity rights. The fair use analysis generally balances competing speech interests—those of the original and secondary authors. But there is no speech interest in cashing in on your fame. In addition, copyright law is designed to encourage creativity through economic incentives. No such additional incentive is needed for celebrities.</p>
<p>It’s entirely understandable that a court might sympathize with Ryan Hart. But if the court’s test was applied broadly, it could have a devastating impact on creative works that relate to real people and life stories. For example, the rationale would apply directly to political biographies or biopics like <cite>The Social Network</cite>. It could even impact news reporting. The appellate court’s decision sends a message to all creators—if you create a work that happens to evoke someone’s identify, and your use isn’t “transformative” enough, your free speech is less important than that person’s ability to milk his or her fame for everything it’s worth.</p>
<p><u>Finally, the ugly</u>: The Third Circuit expressly embraced a very silly notion: that your name and fame are your “property.” Nonsense. Publicity rights are, at most, a limited right to control the use of aspects of your identity for commercial purposes—nothing more, nothing less. As we’ve seen with copyrights and trademarks, treating limited monopolies in certain expression as a "property" leads people to embrace broad and dangerous new forms of protection for that "property." By treating publicity rights as equivalent to a real property rights (in your home, for example), the court gave far too much weight to celebrities’ interest in control over their image and far too little weight to free speech.</p>
<p>Bad facts, bad law. We hope EA appeals this decision, and that the Supreme Court overturns it.</p>
</div></div></div><div class="field field-name-field-files field-type-file field-label-above"><div class="field-label">Files:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://www.eff.org/files/hart_v._ea_3rd_cir_decision_copy.pdf" type="application/pdf; length=786187">hart_v._ea_3rd_cir_decision_copy.pdf</a></span></div></div></div><div class="field field-name-field-issue field-type-taxonomy-term-reference field-label-above"><div class="field-label">Related Issues:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/issues/free-speech">Free Speech</a></div><div class="field-item odd"><a href="/issues/video-games">Video Games</a></div><div class="field-item even"><a href="/issues/intellectual-property">Fair Use and Intellectual Property: Defending the Balance</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/home?status=Publicity+Rights+Aren%E2%80%99t+Property+Rights%3A+Appellate+Court+Gets+It+Very+Wrong+in+Hart+v.+EA+https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F05%2Fpublicity-rights-arent-property-rights-court-wrong-hart-v-ea" target="_blank"><img src="/sites/all/themes/frontier/images/share/twitter16.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?u=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F05%2Fpublicity-rights-arent-property-rights-court-wrong-hart-v-ea&t=Publicity+Rights+Aren%E2%80%99t+Property+Rights%3A+Appellate+Court+Gets+It+Very+Wrong+in+Hart+v.+EA" target="_blank"><img src="/sites/all/themes/frontier/images/share/facebook.gif" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F05%2Fpublicity-rights-arent-property-rights-court-wrong-hart-v-ea" onclick="javascript:window.open(this.href, '', 'menubar=no,toolbar=no,resizable=yes,scrollbars=yes,height=600,width=600');return false;"><img src="/sites/all/themes/frontier/images/share/gplus-16.png" alt="Share on Google+"/></a> <a href="http://sharetodiaspora.github.com/?title=Publicity Rights Aren%E2%80%99t Property Rights%3A Appellate Court Gets It Very Wrong in Hart v. EA&url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F05%2Fpublicity-rights-arent-property-rights-court-wrong-hart-v-ea" target="_blank"><img src="/sites/all/themes/frontier/images/share/diaspora-16.png" alt="Share on Diaspora" /></a>&nbsp;&nbsp;||&nbsp;&nbsp;<a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Wed, 22 May 2013 22:45:49 +0000corynne mcsherry74298 at https://www.eff.orgA Tale of SimCity: Users Struggle Against Onerous DRMhttps://www.eff.org/deeplinks/2013/03/tale-simcity-users-struggle-against-onerous-drm
<div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>It was the best of times, it was the worst of times, for the latest installment in the popular SimCity video game franchise, which was released this week to massive sales, and then just as quickly, an epic fail as the paying customers were unable to play the game they just bought. The culprit isn't the game itself, which by most accounts <a href="http://www.metacritic.com/game/pc/simcity">is pretty good</a>; no, the problem is the game's <a href="https://www.eff.org/issues/drm">DRM scheme</a>.</p>
<p>That software requires each user to maintain an "always online" connection to the publisher's authentication server—even for single player mode—but the publisher, Electronic Arts, is having trouble keeping that server available. Even if you connected, the double helping of fail continued: all cities are saved to the cloud, and if the servers bug out, hours of work can go up in smoke faster than Godzilla can decimate a metropolis. No more local saves, lest you manage to defeat the DRM.</p>
<p>EA has had so many problems, in fact, that it's <a href="http://www.theverge.com/2013/3/7/4074878/ea-deploying-more-simcity-servers-to-stem-persistent-connection">temporarily disabled the kinds of features</a> that might actually benefit from an online connection. You know, the very reason that the online connection was supposed to be a "feature" for users. As a result users are currently suffering through all of the headaches of buggy DRM without any of the upsides of being online.</p>
<p><img class="align-left" src="https://www.eff.org/files/images_insert/simcityscreenshot.png" alt="" height="209" width="341" /></p>
<p>This story may sound familiar. That's because SimCity is just the latest big flop for DRM, which hurts consumers, undermines innovation and competition, and unnecessarily preempts users' fair use rights — all without having a real effect on "piracy." Last year's blockbuster game <a href="http://www.rockpapershotgun.com/2012/05/17/opinion-why-the-problem-with-diablo-isnt-diablo/">Diablo III suffered from many of the same problems</a>. And another publisher, Ubisoft, insisted on using "always online" DRM for all of their top titles for years, before finally accepting that it was <a href="http://www.rockpapershotgun.com/2012/09/05/ubisoft-drm-piracy-interview/">harming legitimate purchasers without slowing down the "pirates" at all</a>. In fact, unauthorized copies of the games had removed the need to maintain a constant connection with the authentication servers, making the playing experience better in some cases. Publishers may disagree about the solution to problems posed by unauthorized copying and the challenges of "competing with free," but surely the first step in that competition is not making the legitimate product worse than the free one.</p>
<p>In the few days since the new Sim City's launch, the game has racked up over 1,000 1-star reviews on Amazon, followed by its <a href="http://www.theverge.com/2013/3/7/4076104/amazon-stops-simcity-digital-orders-customer-complaints">temporary suspension from the store</a>. <a href="https://www.change.org/petitions/electronic-arts-inc-remove-always-online-drm-from-simcity-and-future-games">An online petition aimed at Electronic Arts dropping its "always online" DRM</a> from Sim City and future games has racked up 35,000 signatures and counting. A Reddit AMA with the developers was <a href="http://www.reddit.com/r/IAmA/comments/14umm1/we_are_the_simcity_dev_team_from_maxis_amaa/c7gnxdy">dominated by disgust</a> for the DRM. Clearly, the decision to include DRM on this title has been a major problem for Electronic Arts, but the underlying problem is much larger.</p>
<h3 id="drms-ugly-history">DRM's Ugly History</h3>
<p>Even outside of the world of video games, DRM's got an ugly history of upsetting consumers and even leading to legal action. The most notorious may be <a href="https://www.eff.org/cases/sony-bmg-litigation-info">Sony's inclusion of a rootkit on music CDs </a>— essentially a malware tool — that raised major security and privacy concerns among CD buyers.</p>
<p>Since then, music companies have mostly seen the light and dropped DRM, but other media lag behind. Ebooks, for example, are largely sold wrapped in the digital locks, though <a href="https://www.eff.org/deeplinks/2012/05/make-every-day-day-against-drm">a few forward-thinking publishers have seen good results dropping it</a>. The movie studios are working hard to push the latest DRM-laden movie format, a physical/digital combination called UltraViolet, but early reviews are in and <a href="http://martinbelam.com/2013/ultraviolet/">not very positive</a>.</p>
<p>And the troubles with DRM are not limited to reducing access in bits and pieces — it can extend to disabling content altogether. When the company running the authentication server decides the maintenance costs are too high, it can flick a switch and render the content useless. This isn't hypothetical, either: Google, for example, <a href="http://arstechnica.com/tech-policy/2007/08/google-selleth-then-taketh-away-proving-the-need-for-drm-circumvention/">killed its video offerings</a> after buying YouTube, making previously purchased videos unplayable. Electronic Arts itself regularly announces which games it will be turning off for legitimate users.</p>
<h3 id="drms-evil-henchman-dmca-1201">DRM's Evil Henchman: DMCA 1201</h3>
<p>While DRM software is busy keeping you from freely using all the content you legitimately bought, the worst kept secret in the industry is that it <em>always</em> gets broken. And of course, once it is broken even once, DRM-free copies become available for unauthorized download. So in order to give this ineffective software some legal teeth, the content industry pushed for a law that became section 1201 of the <a href="https://www.eff.org/issues/dmca">Digital Millennium Copyright Act (DMCA)</a>.</p>
<p>Section 1201 regulates the circumvention of "access control measures" like DRM. Never mind that there is already law that covers actual infringement; because of section 1201, bypassing DRM systems even for noninfringing fair uses might get you targeted for a lawsuit. This is the same law that <a href="https://www.eff.org/is-it-illegal-to-unlock-a-phone">might affect cell phone unlocking</a>, a rule that the Obama administration has said is <a href="https://www.eff.org/deeplinks/2013/03/white-house-supports-unlocking-phones-real-problem-runs-deeper">out of line with common sense</a>.</p>
<p>Congress knew an outright ban on circumvention tools wasn't workable, so it included a process for the Librarian of Congress to establish some temporary exemptions. EFF has worked to put <a href="https://www.eff.org/cases/2012-dmca-rulemaking">some important exemptions</a> in place, but those must be renewed every three years. The process is time-consuming and difficult, and as we explained before the 2006 rulemaking, "<a href="https://www.eff.org/press/archives/2005/12/01">fundamentally broken</a>."</p>
<p>No wonder, then, that there's a growing movement to fix this part of the DMCA. You can join EFF and a number of other groups on a campaign to called <a href="http://www.fixthedmca.org/">Fix the DMCA</a> that targets section 1201 for reform or repeal.</p>
<h3 id="what-can-users-do">What Can Users Do?</h3>
<p>Video game players frustrated with the DRM situation can vote with their thumbs, sending a message by rejecting games that come tangled up with anti-consumer software. The success of sales platforms like <a href="https://www.humblebundle.com/">Humble Bundle</a> — which sells collections of DRM-free games and supports EFF with a user-determined portion of the proceeds, and is offering a new bundle now — demonstrates that companies can have success and respect their users at the same time.</p>
<p><i>image: A <a href="http://www.simcity.com/en_US/media/screenshot/meteor">screenshot</a> from SimCity 2013</i></p>
</div></div></div><div class="field field-name-field-issue field-type-taxonomy-term-reference field-label-above"><div class="field-label">Related Issues:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/issues/drm">DRM</a></div><div class="field-item odd"><a href="/issues/video-games">Video Games</a></div><div class="field-item even"><a href="/issues/dmca">DMCA</a></div></div></div><div class="share-links" style="margin-bottom:10px"><br/>Share this: <a href="https://twitter.com/home?status=A+Tale+of+SimCity%3A+Users+Struggle+Against+Onerous+DRM+https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F03%2Ftale-simcity-users-struggle-against-onerous-drm" target="_blank"><img src="/sites/all/themes/frontier/images/share/twitter16.png" alt="Share on Twitter" /></a> <a href="https://www.facebook.com/share.php?u=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F03%2Ftale-simcity-users-struggle-against-onerous-drm&t=A+Tale+of+SimCity%3A+Users+Struggle+Against+Onerous+DRM" target="_blank"><img src="/sites/all/themes/frontier/images/share/facebook.gif" alt="Share on Facebook" /></a> <a href="https://plus.google.com/share?url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F03%2Ftale-simcity-users-struggle-against-onerous-drm" onclick="javascript:window.open(this.href, '', 'menubar=no,toolbar=no,resizable=yes,scrollbars=yes,height=600,width=600');return false;"><img src="/sites/all/themes/frontier/images/share/gplus-16.png" alt="Share on Google+"/></a> <a href="http://sharetodiaspora.github.com/?title=A Tale of SimCity%3A Users Struggle Against Onerous DRM&url=https%3A%2F%2Fwww.eff.org%2Fdeeplinks%2F2013%2F03%2Ftale-simcity-users-struggle-against-onerous-drm" target="_blank"><img src="/sites/all/themes/frontier/images/share/diaspora-16.png" alt="Share on Diaspora" /></a>&nbsp;&nbsp;||&nbsp;&nbsp;<a href="https://supporters.eff.org/join" style="background-color:#cc0000; color:#ffffff; text-decoration:none; cursor:pointer; padding:5px 8px; font-family:verdana; font-weight:bold; border-radius:8px; text-shadow: 1px 1px #660000; text-transform:uppercase;">Join EFF</a></div>Fri, 08 Mar 2013 19:50:04 +0000Parker Higgins73432 at https://www.eff.org